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Court of AppealAllowedCivil Appeal No. 129 of 2014· [2017] KECA 535 (KLR)

Damco Logistics Kenya Limited v Bash Hauliers Limited [2017] KECA 535 (KLR)

Court of Appeal
12 May 2017
2,484 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that courts should freely allow amendments to pleadings before trial, and mere delay alone cannot justify refusing them unless real, uncompensable prejudice is shown.

What this practically means

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Executive summary

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The respondent sued the appellant at the High Court for Kshs. 9,333,720 as alleged balance of freight and transportation charges. Pending the suit, the appellant applied by notice of motion dated 20th December 2012 for leave to amend its defence to plead a set-off and counterclaim, asserting that on reconciliation the respondent was indebted to it in Kshs. 729,245. Kimondo J dismissed the application on 16th April 2013, finding the delay of over one year and three months unexplained, that the amendments would introduce a new party and claim, and that they would prejudice the respondent and alter the character of the suit. The appellant appealed. The Court of Appeal, allowing the appeal, reiterated the parameters for interfering with a discretionary decision, including that the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant ones, or was plainly wrong. The Court held the learned Judge overstated the delay, which was partly explained by the prior determination of a jurisdictional objection, and misapprehended the reference to Maersk Kenya Limited, which merely gave historical background or asserted succession in title rather than seeking joinder. No prejudice was averred or evidenced, as the respondent filed no replying affidavit, and any prejudice would have had to be incapable of compensation by costs to justify refusal. The Court set aside the Judge's order, substituted an order allowing the motion, directed the appellant to file and serve its amended defence, set-off and counterclaim within fourteen days, awarded the appellant the costs of the appeal, and ordered the costs of the motion to be in the cause.

Key legal issues

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01

Test for appellate interference with a judge's discretionary decision

Holding

The Court of Appeal is slow to interfere with a discretionary decision and will do so only where the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant ones, or where the decision is plainly wrong.

Reasoning

Leave to amend pleadings lies in the wide but judicial discretion of a judge, exercisable on settled principles. Because it is discretionary, an appellate court pays due deference and will not interfere merely because it would have reached a different decision itself. Interference is warranted where the discretion was exercised contrary to principle, was plainly wrong, or occasioned misjustice. Applying these parameters, the Court found the learned Judge misapprehended the issue, overstated the delay, and wrongly exercised his discretion.

p. 3
02

Whether delay justified refusal of leave to amend

Holding

The learned Judge overstated the delay of one year and three months; mere delay is not a ground for declining leave unless it prejudices the opposite party beyond monetary compensation in costs. The delay was partly explained by the prior determination of a jurisdictional objection.

Reasoning

The general principle is that amendments should be freely allowed before hearing, and even after hearing but before judgment in proper cases. The Judge placed undue weight on the appellant's dilatoriness, which was partially explained by the prior jurisdictional ruling. Citing Central Kenya Ltd v Trust Bank Ltd, the Court affirmed that delay only justifies refusal where it prejudices the opposite party beyond compensation in costs.

p. 4
03

Whether the amendments would introduce a new party requiring joinder of Maersk Kenya Limited

Holding

The learned Judge misunderstood the import and effect of the amendment. The reference to Maersk Kenya Limited was merely historical background or an assertion of succession in title; nowhere was it suggested that Maersk Ltd was to be enjoined.

Reasoning

The Judge concluded that allowing the amendment would introduce a new party and claim as opposed to joinder under Order 1, basing this on an affidavit averment that the appellant was formerly known as Maersk Logistics Kenya Limited. The Court held the appellant was simply giving historical background to the transactions or asserting it was successor in title. The Judge therefore got it wrong and wrongly exercised his discretion in rejecting the amendments.

p. 4
04

Whether prejudice to the respondent was demonstrated

Holding

No prejudice was averred or evidenced, as the respondent filed no replying affidavit; any finding of prejudice was speculative, and in any event only prejudice incapable of compensation by costs would justify refusal.

Reasoning

The respondent was content with grounds of opposition and swore no affidavit in reply, so there was no averment or evidence of what prejudice, harm or injustice the amendments would occasion. Absent such averments, the Judge's finding of prejudice was speculative. Further, the Judge should have interrogated whether any prejudice was of a character so grave as to be incapable of redress by an award of damages. On the record there was no such prejudice.

p. 4

Legal principles established

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  • Amendments to pleadings should be freely allowed before the hearing of a suit unless injustice or prejudice would be caused to the other side, and there is no injustice if the other side can be compensated by an order of costs.
  • Mere delay is not a ground for declining leave to amend; the delay must be likely to prejudice the opposite party beyond monetary compensation in costs.
  • An appellate court will interfere with a discretionary decision of a judge where the judge misdirected himself in law, misapprehended the facts, took into account matters he should not have, failed to take account of matters he should have, or the decision is plainly wrong.
  • The possibility that an amendment may lead to the joinder of other parties is not, of itself, a reason to refuse leave to amend.

Court orders

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  1. 1.Appeal allowed; the order of the learned Judge set aside
  2. 2.Substituted order allowing the motion dated 20th December 2012, with costs of the motion in the cause
  3. 3.Appellant to file and serve its amended defence, set off and counterclaim within fourteen days
  4. 4.Appellant to have the costs of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8
  • Civil Procedure Rules, 2010Order 1

Cases cited (3)

  • EASTERN BAKERY vs. CASTELINO
    [1958] EA 461
  • CENTRAL KENYA LTD vs. TRUST BANK LTD
    [2000] 2 EA 365
  • UNITED INDIA CO. LTD & 2 OTHERS vs. EAST AFRICAN UNDERWRITERS KENYA LTD
    [1985] KLR 898
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 311 of 2011
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling in H.C.C.C. No. 311 of 2011); appeal as of right against a discretionary interlocutory ruling

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Damco Logistics Kenya Limited v Bash Hauliers Limited [2017] KECA 535 (KLR)", Case Analysis (2017). Civil Appeal No. 129 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/535/eng@2017-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.